After the Supreme Court totally punted
on the question of business model and software patents in the Bilski ruling, the courts have been a mixed bag. Without a brightline rule, they're sort of fumbling around. We recently wrote about one case that suggested that the courts might be much more willing to dump software patents
, but other rulings are going in a different direction. The EFF has noted that a series of recent decisions from the Federal Circuit (CAFC) have basically left lawyers scratching their heads over what is and what is not patentable
Taken together, these post-Bilski cases confuse, rather than clarify, the standard for impermissible abstraction. In four cases (Bilski, Ultramercial, Classen, and CyberSource), two patents were too abstract (patents for hedging risks and detecting credit card fraud) and two were not (patents for showing ads before copyrighted content and devising immunization schedules). For laypeople and attorneys alike, it is hard to understand why the latter two patents were any more concrete than the former. One might argue that the upheld patents required added complexity (computer programming and administering an immunization), but the abstract patents would likewise require additional steps to execute. What distinguishes those steps that are too abstract from those that are not?
As James Bessen has said repeatedly, a working patent system would lead to clear boundaries. A broken patent system is one with ridiculously vague boundaries, because all that does is increase litigation. The Supreme Court really should have made a clear ruling in Bilski. Instead, in many ways, the confusion and uncertainty is making the system worse, and just encouraging greater litigation.